PURCHASE AND SALE AGREEMENT
Exhibit 10.1
This
Purchase and Sale Agreement (this "Agreement") is made as of April
2, 2021, between DYNATRONICS CORPORATION ("Seller"), and MAPLE LEAF REALCO II, LLC
("Buyer").
1. Definitions. As used in this
Agreement, unless the context otherwise requires or is otherwise
herein expressly provided, the following terms shall have the
following meanings:
(a) Closing Date: On or before the
date which is fifteen (15) days following the expiration of the
Inspection Period.
(b) Xxxxxxx Money: The sum of Fifty
Thousand and No/100 Dollars ($50,000.00) deposited by Buyer with
Escrow Agent within three (3 ) business days of the Effective
Date.
(c) Effective Date: The date of
full execution of this Agreement.
(d) Inspection Period: The period
commencing on the Effective Date and terminating at 5:00 p.m.,
eastern time, on the date which is thirty (30) days following the
Effective Date, during which time Buyer may conduct the inspection
described in Section 3.
(e) Property: That certain real
property located at 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxx. Xxxxxxxxx, as
more particularly described in Exhibit A attached hereto and
made a part hereof by reference, and including all rights, title,
and interest described on Exhibit A.
(f) Purchase Price: One Million
Seven Hundred Fifty Thousand and No/100 Dollars ($1,750,000.00)
payable in cash or immediately available funds by wire transfer at
the Closing.
(g) Title Company/Escrow Agent:
First American National Title Insurance Company.
2. Purchase and Sale; Deposit of Xxxxxxx
Money. For the consideration hereinafter set forth, but
subject to the terms, provisions, covenants, and conditions herein
contained, Seller hereby agrees to sell and convey, and Buyer
hereby agrees to purchase and pay the Purchase Price for, the
Property. Within three (3) business days following the Effective
Date, Buyer will deposit the Xxxxxxx Money with Escrow Agent. If
the sale hereunder is consummated in accordance with the terms
hereof, Escrow Agent shall deliver the Xxxxxxx Money to Seller to
be applied to the Purchase Price to be paid by Buyer at the
Closing. In the event of a default hereunder by Buyer or Seller,
the Xxxxxxx Money shall be applied as provided herein. In the event
that Buyer does not terminate this Agreement in accordance herewith
by delivering written notice to Seller on or before the expiration
of the Inspection Period,
the Xxxxxxx Money shall become non-refundable to
the Buyer, except in the event of a breach of this Agreement by the
Seller that is not cured by Seller in accordance with this
Agreement, or except as otherwise provided in this
Agreement.
3. Inspection.
(a) Prior to the
expiration of the Inspection Period, Buyer shall have the right to
conduct, at its own expense, a due diligence review of the Property
(the "Inspection"). The cost of the Inspection shall be at Buyer's
sole cost and expense. Notwithstanding anything contained herein to
the contrary, Buyer shall not conduct any invasive testing on the
Property, including, but not limited to, a Phase II Environmental
Site Assessment, without the written consent of Seller, which
consent shall not be unreasonably withheld or delayed. Seller
hereby grants to Buyer, and Buyer hereby accepts from Seller, a
non-exclusive, limited license to have reasonable access to the
Property in order to allow Buyer to conduct its Inspection upon the
terms and conditions set forth herein. Seller shall cooperate, at
no cost to Seller, in a commercially reasonable manner, with Buyer
in its conduct of the Inspection. Without limiting the generality
of the foregoing, Seller shall provide Buyer with access to all of
the Property, and shall provide all information which is in the
possession or control of Seller that is reasonably requested by
Buyer, and that is reasonably available to Seller, in the conduct
of the Inspection, including all information that is reasonably
necessary for the performance by Buyer or Buyer’s
Representative of a Phase 1 Environmental Site Assessment, and all
other commercially reasonable tests, assessments, surveys, and the
like. Buyer shall endeavor in good faith to provide Seller with at
least twenty-four (24) hours’ notice prior to each entry upon
the Property, shall advise Seller of the expected duration of the
Inspection, and shall comply with all reasonable limitations placed
on its access by Seller. Seller shall endeavor to accommodate all
reasonable requests by Buyer to enter the Property to conduct the
Inspection. Such license shall be personal and non-transferable,
except that it may be transferred to any employee, agent or
representative (collectively, "Representatives") of Buyer who will
be conducting any aspect of the Inspection on Buyer's behalf, upon
notification to Seller of the party's identity prior to such
party's entry upon the Property, and all references in this section
to Buyer shall include such Representatives.
(b) In no event shall
Seller have any liability to Buyer (or its Representatives) for any
Losses (as defined below) arising in connection with the
Inspection. Moreover, Buyer assumes all risks and hazards
encountered in the performance of the Inspection, and Buyer shall
be solely responsible for all injuries, including death, to all
persons, and all losses and damages to property, to the extent
proximately caused by Buyer’s or the Representatives'
performance of the Inspection. Buyer agrees that it will take such
steps and enter into such contracts with any Representatives
engaged by it necessary to ensure that the Inspection will be
performed (i) in a professional and workmanlike manner, and (ii) in
accordance with all applicable federal, state and local laws,
regulations, rules and orders. Buyer shall release, defend,
indemnify and hold harmless Seller and its affiliates, officers,
managers, members, employees, agents, tenants, and representatives
(collectively, the "Seller Indemnitees") from and against any and
all demands, claims, actions, causes of action, assessments, fines,
penalties, losses, damages, liabilities, costs and expenses,
including without limitation any of the foregoing related to injury
or death, of any person, and damage or loss of use of property, and
all reasonable litigation costs and all reasonable attorneys' and
reasonable experts' fees and expenses (collectively, "Losses"),
proximately attributable to or proximately incurred in connection
with the Inspection, regardless of whether the Losses giving rise
to such indemnification obligation is the result of the sole,
concurrent or comparative negligence of any Seller Indemnitee. To
the extent that such insurance coverage is reasonably available,
Buyer shall carry, and shall ensure that any third party
Representatives shall carry, insurance with financially sound and
reputable insurers containing the types of coverage and limits that
are reasonably satisfactory to Seller, including without limitation
liability and worker's compensation insurance, relating to the
conduct of the Inspection. Prior to conducting the Inspection,
Buyer shall furnish Seller with a certificate showing such
coverages. Buyer shall ensure that all sums owing to any third
party Representative as a result of the Inspection are timely paid,
and shall keep the Property and all other assets of the Seller free
from any and all liens, including without limitation any mechanic's
and materialmen's liens, as a result of the Inspection. Buyer
agrees to defend, indemnify and hold harmless the Seller
Indemnitees from and against any and all Losses arising from or
otherwise in connection with a breach of this Section. Nothing
herein is intended to create, nor shall be deemed to create, a
relationship of employer and employee, or a relationship of
principal and agent, or a joint venture or partnership, between
Seller and Buyer, or between Seller and any of the
Representatives.
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(c) Within five (5)
days after the Effective Date, Seller shall furnish Buyer with
copies of the following, to the extent in Seller's possession or
control: (i) all plans, surveys, drawings, permits, licenses, use
authorizations and/or restrictions, inspection reports of any kind,
and environmental reports, relating to the Property, (ii) all
documents related to repairs and maintenance of the Property, (iii)
all notifications, and allegations of construction defects, errors
or omissions or on account of any conditions affecting the
Property, (iv) documents related to any insurance claims related to
the Property within the 5 years immediately preceding the Effective
Date, (iv) all notifications, and allegations of violations of any
laws, rules, ordinances or regulations of any applicable
governmental authority or body relating to the Property at any
time, including, without limiting the generality of the foregoing,
all environmental laws, rules, or regulations, (v) all
notifications, and allegations of the presence of hazardous
substances (as defined by the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. §§
9601 et seq.) on the Property at any time in violation of
applicable laws, (vi) a summary of any pending or threatened
litigation related to the Property, and (vii) a complete list of
all current service agreements, maintenance agreements, and
warranties related to the Property, along with a copy of each item
included on that list.
(d) In order to
terminate this Agreement pursuant to this Section, Buyer must
provide written notice to Seller prior to the expiration of the
Inspection Period. Upon receipt of such notice, timely provided,
Seller shall instruct the Escrow Agent to release the Xxxxxxx Money
to the Buyer.
4. Title and Survey.
(a) Buyer shall obtain
a commitment for title insurance, showing the status of title to
the Property according to the Title Company and committing to issue
an owner's title policy to Buyer (the “Commitment”).
Buyer may, at Buyer's sole expense, obtain an ALTA/ACSM survey of
the Property or an update of any existing survey (the "Survey"). If
(i) any exceptions appear in the Title Commitment that affect the
Property that are unacceptable to Buyer, or (ii) the Survey shows
any matter affecting the Property that may have a material adverse
effect on the Buyer's contemplated use of the Property, then in
such event Buyer shall, within fifteen (15) days after receipt of
the Title Commitment, notify Seller in writing of such fact and the
reasons therefor ("Buyer's Property Objections", or each an
"Objection"). Within five (5) business days after receipt of
Buyer's Property Objections, Seller may either (1) notify Buyer
that it shall endeavor to satisfy or correct said Objections or (2)
notify Buyer that Seller will not correct such Objections. In the
event Seller elects to endeavor to cure said Objections, such cure
shall be completed no later than the date of Closing. In the event
that Seller notifies Buyer that Seller has elected not to cure or
satisfy any of Buyer’s Property Objections, then within three
(3) business days after Buyer's receipt of such written notice,
Buyer shall, by written notice to Seller, elect one of the
following: (i) to waive said Objections and to close the
transaction in accordance with the terms of this Agreement; or (ii)
to cancel this Agreement and to have the Xxxxxxx Money returned to
Buyer, in which event neither Seller nor Buyer shall have any
further duties or obligations under this Agreement. For purposes of
this subsection 4(a), Seller’s failure to respond to
Buyer’s Property Objections or any individual Objection
within the five (5) business day period set forth herein shall be
deemed notice to Buyer that Seller has elected not to cure such
Buyer’s Property Objections.
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(b) Notwithstanding
anything to the contrary contained herein, Seller shall have no
obligation to bring any action or proceeding or otherwise to incur
any expense whatsoever to eliminate or modify any of Buyer's
Property Objections.
(c) If Buyer does not
elect to terminate this Agreement as set forth herein, Buyer shall
be deemed to have accepted the form and substance of the Commitment
and the Survey. In the event of a termination pursuant to this
Section, the parties shall have no further rights or obligations
hereunder and the Xxxxxxx Money shall be returned to
Buyer.
(d) The term "Permitted
Encumbrances" as used herein includes: (i) any easement, right
of way, encroachment, conflict, discrepancy, overlapping of
improvements, protrusion, lien, encumbrance, restriction,
condition, covenant or other matter with respect to the Property
not made the subject of a Buyer's Property Objection, whether or
not reflected or addressed on the Survey or the Commitment; and
(ii) any Buyer's Property Objections which Seller does not agree in
writing to cure. The term "Permitted Encumbrances" excludes any of
the following which were or are placed on the Property with the
knowledge and consent of Seller: mortgages and deeds of trust
securing the payment of money owed by Seller (specifically
excluding liens for taxes, assessments or betterments not yet due
and payable).
5. Property
Condition.
Buyer acknowledges that Seller has not made, does not make, and
specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or
character whatsoever, whether express or implied, oral or written,
of, as to, concerning, or with respect to, (i) the value,
nature, quality or condition of the Property, including, without
limitation, the water, soil and geology, (ii) the suitability
of the Property for any and all activities and uses which may be
conducted thereon, (iii) the compliance of or by the Property
with any laws, rules, ordinances or regulations of any applicable
governmental authority or body, (iv) the habitability,
merchantability, marketability, profitability or fitness for a
particular purpose of the Property, (v) any other matter with
respect to the Property, or (vi) the environmental condition of the
Property or the existence of any hazardous substances on, under or
about the Property. Specifically, but not in limitation of the
foregoing, Buyer further acknowledges that Seller has not made,
does not make and specifically negates and disclaims any
representations or warranties regarding compliance of the Property
with any environmental protection, pollution or land use laws,
rules, regulations, orders or requirements, or the disposal or
existence, in or on the Property, of any hazardous substances, as
defined by Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, 42 U.S.C. § 9601 et seq, and the
regulations promulgated thereunder. Buyer is relying solely on its
own investigation of the Property and not on any information
provided or to be provided by Seller, its agents or contractors.
Seller shall not be liable or bound in any manner by any oral or
written statements, representations or information pertaining to
the Property or the operation thereof, furnished by any party
purporting to act on behalf of Seller.
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The
sale of the Property as provided for herein is made on an "As Is",
"Where Is" basis and with all faults. Buyer agrees that (a) Seller
shall not be responsible or liable for any construction defects,
errors or omissions or on account of any other conditions affecting
the Property; (b) Buyer or anyone claiming by through or under
Buyer, hereby fully releases Seller and its respective contractors,
affiliates, officers,
managers, members, employees, agents, and representatives
from any cost, loss, liability, damage, expense, demand, action or
cause of action arising from or related to any construction
defects, errors, or omissions or other conditions affecting the
Property, whether known or unknown, present or future, foreseeable
or unforeseeable, including but not limited to, those arising due
to the presence of any hazardous substances on, under or about the
Property; (c) the foregoing release shall be given full force and
effect according to each of its expressed terms and provisions,
including, but not limited to, those relating to unknown and
suspected claims, damages and causes of action; and (d) this
covenant releasing Seller shall be a covenant running with the land
and shall be binding upon Buyer, its successors and
assigns.
The
foregoing provisions of this Section 5 shall not apply in the event
and to the extent of any fraudulent, material misrepresentation
made to Buyer by Seller in this Agreement. The provisions of this
Section 5 shall expressly survive the Closing (as hereinafter
defined) and the sale of the Property.
6. Conditions to Buyer's and Seller's
Obligations.
(a) It shall be a
condition precedent to Buyer's obligations hereunder that Seller
shall have performed, observed and complied with all covenants,
agreements and conditions required by this Agreement to be
performed, observed and complied with by Seller prior to, or as of,
the Closing.
(b) It shall be a
condition precedent to Seller's obligations hereunder that Buyer
shall have performed, observed and complied with all covenants,
agreements and conditions required by this Agreement to be
performed, observed and complied with by Buyer prior to, or as of,
the Closing, including, without limitation, Buyer's delivery of the
Purchase Price.
7. Closing. The closing (the
"Closing") of this transaction shall take place in escrow through
the mail with Escrow Agent serving as the closing agent on the
Closing Date or at such other time as the parties may reasonably
agree. At the Closing, the following shall occur:
(a) Seller shall
deliver to Buyer a duly executed and acknowledged special warranty
deed (the "Deed"), without warranties except warranty of title by,
through or under Seller, but not otherwise, subject to the
Permitted Encumbrances, and taxes for the year of Closing, payment
of which shall be prorated as herein set forth and assumed by
Buyer.
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(b) Buyer shall pay to
Seller the Purchase Price, plus or minus applicable prorations
determined in a manner consistent with this Agreement less the
Xxxxxxx Money (provided that Escrow Agent has delivered to Seller
the Xxxxxxx Money).
(c) The Title Company
shall deliver to Buyer a pro forma owner's title policy (or marked
title commitment) issued by the Title Company in the amount of the
Purchase Price insuring that Buyer owns fee simple title to the
Property, subject to (i) the Permitted Encumbrances; and (ii) the
standard printed form exceptions (with the exception as to taxes
limited to the year of Closing).
(d) Real estate taxes
relating to the Property for the calendar year of closing shall be
prorated as of the Closing Date. If Closing shall occur before the
actual taxes for the year are known, the apportionment of taxes
shall be upon the basis of taxes for the Property for the prior
year. All special taxes or assessments for the year of closing
which have been actually assessed prior to the Closing Date shall
be prorated as set forth above, and those assessed after the
Closing Date shall be paid by Buyer. Therefore, Buyer shall be
responsible for all real estate taxes, special taxes or assessments
due and payable after the Closing Date.
(e) Possession of the
Property shall be given to Buyer.
(f) Seller shall
deliver to Buyer a "non-foreign affidavit" acknowledging that
Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code.
(g) Buyer and Seller
shall deliver to each other such documentary and other evidence as
may be reasonably required by them or the Title Company evidencing
the status and capacity of Buyer or Seller and the authority of the
person or persons who are executing the various documents on behalf
of Buyer or Seller in connection with this Agreement.
8. Remedies. In the event that
Seller shall breach any of its obligations hereunder or shall fail
to consummate this Agreement for any reason, except Buyer's default
or a termination of this Agreement by Buyer or Seller pursuant to a
right to do so under the provisions hereof, Buyer may either
terminate this Agreement in writing and receive a refund of the
Xxxxxxx Money, or in the alternative bring an action for specific
performance. In the event that Buyer shall fail to consummate this
Agreement for any reason, except Seller's default or the
termination of this Agreement by Buyer or Seller pursuant to a
right to do so under the terms and provisions hereof, then Seller
may terminate this Agreement and receive the Xxxxxxx Money as
liquidated damages. The parties agree that Seller will suffer
damages in the event of Buyer's default on its obligations.
Although the amount of such damages is difficult or impossible to
determine, the parties agree that the amount of the Xxxxxxx Money
is a reasonable estimate of Seller's loss in the event of Buyer's
default. Thus, Seller shall accept and retain the Xxxxxxx Money as
liquidated damages but not as a penalty. In the event Seller is
entitled to the Xxxxxxx Money as liquidated damages, the Xxxxxxx
Money shall be immediately paid to Seller by Escrow Agent upon
receipt of written notice from Seller that Buyer has defaulted
under this Agreement, and Buyer agrees to take all such actions and
execute and deliver all such documents necessary or appropriate to
effect such payment. Notwithstanding anything to the
contrary herein, in no event shall either party be liable nor shall
any action be brought for consequential, incidental, exemplary or
punitive damages, and the foregoing shall be the sole and exclusive
remedies of the parties.
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9. Real Estate Commissions. Except
for CBRE, Inc., representing Seller, and Xxxxxx Xxxxxxx Commercial,
Inc., representing Buyer (collectively, the “Brokers"),
Seller and Buyer each represent to the other that it has not
authorized any broker or finder to act on its behalf in connection
with the sale and purchase hereunder and that such party has not
dealt with any broker or finder purporting to act on behalf of any
other party. Except for payment of real estate broker commissions
to the Brokers pursuant to a separate agreement, each party hereto
agrees to indemnify and hold harmless the other party from and
against any and all losses, liens, claims, judgments, liabilities,
costs, expenses or damages (including reasonable attorneys' fees
and court costs) of any kind or character arising out of or
resulting from any agreement, arrangement or understanding alleged
to have been made by such party or on its behalf with any broker or
finder in connection with this Agreement or the transaction
contemplated hereby. Notwithstanding anything to the contrary
contained herein, this Section shall survive the Closing or any
termination of this Agreement.
10. Costs and Expenses. Buyer shall
pay any fees for the recording of the Deed, transfer tax, the cost
of the Survey, the cost of the title insurance policy (including
the cost of extended coverage and any endorsements) and all other
expenses related to Buyer’s acquisition and financing of the
Property, except that each party shall be responsible for the
payment of its own attorneys' fees incurred in connection with the
transaction and one half of any escrow fee charged by the Escrow
Agent.
11. Risk
of Loss and Condemnation.
(a) Risk
of loss until the Closing shall be borne by Seller.
(b) If
damage, loss or destruction of the Property or any part thereof by
fire or other casualty, or through condemnation or sale in lieu
thereof (collectively, "Damage to the Property") occurs prior to
Closing, then the Closing may, at Seller's election, be postponed
until a reasonable written estimate (the "Estimate") of the amount
of the Damage to the Property is prepared by an insurance adjuster,
M.A.I. appraiser, or other real estate professional (collectively,
the "Preparer"), and delivered to both Buyer and Seller. Both the
Estimate and the Preparer must be approved in writing by both Buyer
and Seller, such approval not to be unreasonably withheld or
delayed.
(c) If the Estimate
concludes that the amount of Damage to the Property is equal to or
greater than Two Hundred Thousand and No/100 Dollars ($200,000.00),
then Buyer, no later than ten (10) calendar days after its receipt
of the Estimate, may terminate this Agreement by written notice to
Seller and, notwithstanding anything to the contrary elsewhere in
this Agreement, Buyer shall receive a refund of all the Xxxxxxx
Money, together with all interest accrued thereon (if
any).
(d) If (A) Buyer does
not terminate this Agreement within the time set forth in Section
11(c) above, or (B) the Estimate concludes that the amount of
Damage to the Property is less than Two Hundred Thousand and No/100
Dollars ($200,000.00), then Buyer and Seller shall close the
transaction as scheduled, with a reduction in the Purchase Price
equal to the Estimate, and Seller shall receive in cash (or retain
the right to receive in cash as the case may be) all insurance or
condemnation proceeds, if any, payable as a result of such
occurrence.
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12. Assignment. Buyer may not
assign or transfer (whether by merger, operation of law or
otherwise) Buyer's interest in this Agreement without obtaining the
prior written consent of Seller, which may be granted or denied in
Seller's sole discretion. Buyer hereby agrees that any assignment
or transfer by Buyer in contravention of this provision shall be
void and shall not relieve Buyer of its obligations and liabilities
hereunder. Notwithstanding the foregoing, subject to Seller’s
prior written consent, such consent not to be unreasonably
withheld, Buyer shall have the right, to assign this Agreement to
an entity which is controlled by Buyer, which Buyer controls or
which is under common control with Buyer, however, no such
assignment shall relieve Buyer from its obligations
hereunder.
13. Prohibition Against
Recordation. This Agreement is not to be recorded. If this
Agreement or any memorandum or affidavit of this Agreement is filed
for record by Buyer in the county where the Property is located,
then, notwithstanding any provision hereof, Seller shall have the
sole and exclusive right to terminate this Agreement by written
notice filed of record in the county where the Property is located,
whereupon the Xxxxxxx Money shall be forfeited to Seller as
liquidated damages, Buyer will immediately execute and release this
Agreement in recordable form, and all parties hereto shall
thereupon automatically be fully and finally released from all
provisions of this Agreement.
14. Notice. All notices required or
permitted to be given hereunder shall be in writing and shall be
deemed given (i) when delivered in person, at the time of such
delivery; (ii) when delivered by a courier service or by
express mail, on the next business day following deposit with the
courier service or express mail; or (iii) three (3) business days
after being deposited in the United States mail, postage prepaid,
registered or certified mail, addressed (in any such case) as
follows:
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If to
Seller:
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Dynatronics Corporation
0000 Xxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
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And a
copy to:
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Xxxxxxx Xxxxx Xxxxx Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
(courtesy copy only, does not constitute
“Notice”)
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|
If to
Buyer:
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Maple
Leaf Realco II, LLCc/x Xxxxxx Waldorf109 Xxxx Xxxxx
Xxxxxx
Xxxxxxxxxxx,
XX 00000
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And a
copy to:
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Gearhiser
Xxxxxx Xxxxxxx & Xxxxxx, PLLC
000
XxXxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx, Xx.
(courtesy
copy only, does not constitute “Notice”)
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|
|
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and/or
to such other respective address and/or addresses as may be
designated by notice given in accordance with the provisions of
hereof.
15. Miscellaneous. This Agreement
shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Agreement to
be drafted. Unless the context indicates otherwise, (i) the terms
"hereof", "hereunder", "herein" and similar expressions refer to
this Agreement as a whole, (ii) the singular shall include the
plural and the masculine gender shall include the feminine and the
neuter, (iii) all references to Sections and subsections shall be
deemed references to the Sections and subsections of this
Agreement, and (iv) the terms "includes" or "including" shall mean
and refer to "including, without limitation." All currency amounts
referenced in this Agreement shall be to United States dollars. The
section headings contained in this Agreement are for convenience
only and shall in no way enlarge or limit the scope or meaning of
the various and several Sections hereof. This Agreement embodies
the entire agreement between the parties hereto and supersedes any
prior understandings or written or oral agreements between the
parties concerning the Property. This Agreement cannot be varied,
modified, amended or altered except by the written agreement of the
parties. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective permitted successors and assigns, except as
expressly set forth herein. All exhibits described herein and
attached hereto are fully incorporated into this Agreement by this
reference for all purposes. This Agreement shall be construed and
interpreted in accordance with the laws of the State of
Tennessee.
If any date specified in
this Agreement for the performance of an obligation, the delivery
of an item, the giving of a notice or the expiration of a time
period falls on a day other than a business day, then this
Agreement shall be automatically revised so that such date falls on
the next occurring business day.
16. Time
of the Essence. Time is of the
essence for each provision of this Agreement of which time is a
factor.
17. Final
Agreement. When this Agreement
has been executed by both Buyer and Seller, it is agreed that all
understandings and agreements heretofore had between the parties
respecting the purchase and sale of the Property and the other
transactions contemplated by this Agreement are merged in this
Agreement, which fully and completely expresses the agreement of
the parties. There are no representations, warranties, or
agreements except as specifically and expressly set forth herein,
in the exhibits annexed hereto, or to be set forth in the
instruments or other documents delivered or to be delivered
hereunder
18. Waiver of Jury Trial; Venue.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I)
ARISING UNDER THIS AGREEMENT OR ANY INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (II) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR
ANY INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY STATE COURT TRIAL WITHOUT A JURY IN
CHATTANOOGA, TENNESSEE, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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19. Counterparts.
This Agreement may be executed in any
number of identical counterparts, each of which when executed and
delivered shall be an original, but all such counterparts shall
constitute but one and the same instrument. Delivery by any party
or its respective representatives of facsimile (counterpart)
signature pages shall be as binding an execution and delivery of
this instrument by such party as if the other party had received
the actual physical copy of the entire instrument with an ink
signature from such party.
20. Like-Kind
Exchange. If either
party desires to have this transaction constitute a like-kind
exchange of properties utilizing the provisions of Section 1031 of
the Internal Revenue Code of 1986, as amended, each party agrees to
cooperate with the other party in order to effectuate and
facilitate such an exchange, provided that: (a) the exchange does
not delay the Closing under this Agreement, (b) the non-exchanging
party does not incur any additional cost or liability as a result
of its cooperation, and (c) the non-exchanging party is not
required to enter into any contract to purchase any other property,
or take title to any property other than the Property.
Signatures on following page
10
IN
WITNESS WHEREOF, this Agreement is executed by Seller and Buyer as
of the date first written above.
SELLER
DYNATRONICS
CORPORATION
By: /s/Xxxxxxxx
Xxxxxx
Name: Xxxxxxxx
Xxxxxx
Title: General
Counsel,
Secretary
BUYER
MAPLE
LEAF REALCO II, LLC
By: /s/Xx
Xxxxxx
Name: Xx
Xxxxxx
Title: Secretary
EXHIBIT A
Legal Description of the Property
Land in
Xxxxxxxx County Tennessee being Lot Four (4), Mountain View
Industrial Park Subdivision, as shown by Corrective Plat recorded
in Plat Book 57, page 332 in the Register’s Office of
Xxxxxxxx County, Tennessee.
Included
in the Property to be conveyed by the Seller to the Buyer are the
following:
1.
Seller’s interest in all privileges, rights, easements, and
appurtenances belonging to the above-described land, including
without limitation, all right, title, and interest (if any) of
Seller in and to any streets, alleys, passages, and other
rights-of-way or appurtenances included in, adjacent to, or used in
connection, with such land, and all right, title and interest (if
any) of Seller in all mineral and development rights appurtenant to
such land (collectively, “Land”);
2.
All buildings, structures and other improvements, and all of
Seller’s right, title and interest, if any, in all fixtures,
systems and facilities, located on the Land
(“Improvements”);
3.
All of Seller’s right, title and interest, if any, in all
assignable intangible assets of any nature relating to the Land
and/or the Improvements, including, without limitation, all of
Seller’s right, title, and interest in all
(i) warranties and guaranties relating to the Improvements in
the possession or control of Seller, (ii) all use, occupancy,
building and operating licenses, permits, approvals, and
development rights, and (iii) all drawings, plans, and
specifications related to the Land and Improvements, in each case
to the extent that Seller may legally transfer the same at no cost
to Seller (“Intangible Property”).
